Citation Nr: 1414339
Decision Date: 04/02/14 Archive Date: 04/11/14
DOCKET NO. 08-08 243 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to service connection for a second toe disorder of the left foot.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Shari Gordon, Associate Counsel
INTRODUCTION
The Veteran had active service from August 1965 to August 1993.
This matter comes before the Board of Veterans' Appeals on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida.
This matter was previously before the Board in September 2011 at which time it was remanded for additional development. It is now returned to the Board. The Board finds that the agency of original jurisdiction substantially complied with the remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).
In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals a January 2014 Appellant's Post Remand Brief, which is not contained in the paper claims file. This record has been reviewed by the Board in adjudicating this claim. The remaining records in the Virtual VA paperless claims file are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.
FINDING OF FACT
Resolving all reasonable doubt in the Veteran's favor, osteoarthritis of the left foot second toe had its onset in service.
CONCLUSION OF LAW
The criteria for service connection for osteoarthritis of the left foot second toe have
been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
VA's Duty to Notify and Assist
VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry.
In the decision below, the Board grants the claim of service connection for osteoarthritis of the left foot second toe. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Service Connection
The Veteran contends that he has had symptomatology related to the left foot second toe in service, and that such symptoms have been present continuously since separation. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").
In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra.
The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).
Service treatment records indicate numerous complaints of, or treatment for, the Veteran's feet, including an October 1984 record of a swollen left second toe with rule out cellulitis or gout and a June 1985 provisional diagnosis of pseudogout. A June 1985 service treatment record reflects a positive finding of rheumatoid arthritis, but also notes that the Veteran's left toe pain, swelling, and erythema had markedly decreased. While the examiner noted a positive rheumatoid factor, the assessment was rheumatoid arthritis, resolving. A February 1986 record also noted that the Veteran had sores on his feet and was diagnosed with dishydrotic eczema versus fungal infection with suprainfection. A July 1986 record noted that he had been treated for left foot abscess and cellulitis. A July 1987 record noted tinea pedis.
A VA examination report dated in April 2007, which included a claims file review, shows that the examiner found diffuse early osteoarthritis of the toes of the left foot. A November 2011 VA examination revealed a normal X-ray of the Veteran's left foot second toe. Yet, according to the Court's holding in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the requirement of a current disability is satisfied when the claimant has the alleged disability at the time the claim for VA disability compensation is filed or during the pendency of the claim. Service connection may be granted even though the disability resolves prior to VA's adjudication of the claim.
In November 2011, a VA physician provided an addendum opinion to the April 2007 VA examination. The examiner reviewed the entire claims file and opined that the Veteran's claimed left foot second toe disorder was less likely as not due to service. The examiner reasoned that while the Veteran is a credible witness and states that his left foot second toe periodically becomes inflamed (although normal at examination) and he describes this in a similar fashion to what is described in service treatment records, there is no medical record of inflammation after service. The examiner further explained that "without evidence of abnormality on exam today, [she] cannot know if what he describes periodically is what happened to him in service." The examiner stated that at the present exam, she can find no condition that is chronic from service.
The Veteran has provided a competent and credible account of in-service symptomatology that is confirmed by the service treatment records, as well as of a continuity of symptoms since separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006), Bardwell v. Shinseki, 24 Vet. App. 36 (2010); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's account of symptomatology has also been fairly consistent, and the VA examiner in concluded that the Veteran was a credible witness as to the onset and continuity of symptoms. The VA examiner appears to have based the negative nexus opinion on the fact that the Veteran did not have active symptoms at the time of the examination so as to conclude whether such were consistent with that as reported in the service treatment records. As noted however, the Veteran has been diagnosed with diffuse early osteoarthritis of the toes of the left foot, therefore, under McClain, the requirement of a current disability has been satisfied. Like the November 2011 VA examiner, the Board finds that the Veteran is credible in describing his symptoms, and his descriptions have been consistent with those as documented in service, over the entire course of this appeal. Thus, the Board finds that the Veteran has provided a competent, credible and highly probative account of in-service symptomatology and continuity of such thereafter. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board's responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence).
In sum, the evidence of record confirms the Veteran's diagnosis of osteoarthritis of the toes of the left foot, and he has provided a competent and credible account of in-service symptomatology, to include in-service onset and continuity since separation. Thus, resolving all reasonable doubt in the Veteran's favor, service connection is warranted and the claim is granted.
ORDER
Service connection for osteoarthritis of the left foot second toe is granted.
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DEMETRIOS G. ORFANOUDIS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs